What is a "Criminal Case" Under Chavez v. Martinez: Section 1983 Lawsuits for Violation of the Self-Incrimination Clause

I had an longer post but my computer crashed, and I need to return to work.  Here is what you need to know.  Today the Ninth Circuit held in Stroot v. City of Everett:

A coerced statement has been “used” in a criminal case when it has been relied upon to file formal charges against the declarant, to determine judicially that the prosecutionmay proceed, and to determine pretrial custody status. Such uses impose precisely the burden precluded by the Fifth Amendment: namely, they make the declarant a witnessagainst himself in a criminal proceeding.

In Stroot, the coerced statement was used against the defendant in:

(1) the Affidavit filed insupport of the Information charging him with child molestation;(2) a pretrial arraignment and bail hearing (the CrR 3.2hearing);12 and (3) a pretrial evidentiary hearing (the CrR 3.5hearing) to determine the admissibility of his confession. Thequestion is whether these forms of reliance on Paul’s statementsconstitute “use” in a “criminal case” under Chavez. Weconclude that (1) and (2) above do constitute such “use.”

There is a circuit split:

The Third, Fourth, and Fifth Circuits have applied Chavez to bar recovery under the Fifth Amendment unless the allegedly coerced statements were admitted against the defendant at trial. See Burrell v.Virginia, 395 F.3d 508, 513-14 (4th Cir. 2005); Murray v. Earle, 405 F.3d 278, 285 (5th Cir. 2005); Renda v. King, 347 F.3d 550,552 (3d Cir. 2003).

The Ninth Circuit has joined the Second and Seventh Circuits:

The Seventh and Second Circuits disagree.... Sornbergerv. City of Knoxville, Illinois, 434 F.3d 1006 (7th Cir. 2006).... More recently, the Second Circuit joined the Seventh Circuitin rejecting the view that police coercion violates theFifth Amendment only if the confession is used at trial. Higazy v. Templeton, 505 F.3d 161 (2d Cir. 2007).

Stroot may be read here.